Army Corps of Engineers Proposes Revising Broad Range of Clean Water Act Nationwide Permits

On September 15, 2020, the Army Corps of Engineers published proposed revisions to a wide range of Nationwide Permits (NWP) issued under the Clean Water Act.  The revisions respond to Executive Order 13783, directing heads of federal agencies to review existing regulations that potentially burden development or use of domestically produced energy resources.  Accordingly, the proposed revisions affect NWPs commonly utilized by utility-scale wind and solar energy projects throughout the country.  The Corps will accept comments on the proposed revisions until November 16, 2020.  Here are highlights from the proposed revisions. Continue Reading

New Proposed Regulation Provides More Guidance and Some Relief on Prop 65 Warning Requirements for Heat Processed Foods and Acrylamide

The Office of Environmental Health Hazard Assessment (“OEHHA”) recently proposed a regulation that would provide more certainty to businesses regarding the Proposition 65 (“Prop 65”) warning requirements for cooked foods.  The proposed regulation is intended to incentivize businesses to lower the concentration levels in foods, encourage consistency and predictability, and ensure that warnings will be given for the foods causing the highest levels of exposure. Continue Reading

California Supreme Courts Holds Categorical Classification of Well Permits As Exclusively “Ministerial” Does Not Hold Water

After a nearly two-year wait, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) __ Cal.5th ____ (POWER), the California Supreme Court unanimously rejected the County of Stanislaus’s (County) bright-line categorization that all groundwater well construction permits are ministerial, and therefore not subject to the California Environmental Quality Act (CEQA).  In an interesting twist, the Supreme Court also rejected the petitioner’s alternative “all or nothing” position that, if the permits are not ministerial, they must be discretionary and conditioned on CEQA compliance.  Instead, the Supreme Court held the decision of whether each permit is ministerial or discretionary hinges on the specific language of the governing ordinance and regulatory controls.[1] Continue Reading

The Pandemic’s Impacts on Developers and Contractors May Call for Seldom-Used Relief: An Overview of the Principles of Force Majeure, Impracticability, and Frustration of Purpose

This article originally appeared in the California Lawyers Association’s Real Property, Environmental and Public Law Journals Joint Issue.

As society responds to the COVID-19 pandemic, states and local governments across the United States, including the State of California, issued shelter-in place (“SIP”) orders[i] to prevent its spread. While intended to benefit Americans in the long run, these actions have resulted in massive and largely unprecedented disruptions in the economy, including record levels of unemployment and sharply limiting the ability of businesses to provide, and customers to purchase, goods and services.[ii] The effects of the pandemic are wide spread and have created financial hardships for individuals and families in every state and locality, as well as inexplicable shortages of toilet paper.[iii]

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County Zoning Ordinance Cannot be Used to Justify Property Seizure

In Granny Purps v. County of Santa Cruz, the Sixth District Court of Appeal green-lit a medical cannabis cultivator’s ability to pursue damages – to the tune of potentially $3.5M – from the County of Santa Cruz when it determined the County cannot rely on zoning ordinance to seize the cultivator’s plants grown in violation of local regulation. Specifically, the Sixth District found that, while the County is not compelled to return seized property if the property is illegal, the local ordinance at issue “ultimately regulates land use within the County; it does not (nor could it) render illegal a substance that is legal under state law.” Continue Reading

Splitting The Roll – Commercial And Industrial Property Owners May Face Significant California Property Tax Increases Starting As Early As The 2022-2023 Fiscal Year

California’s Proposition 13 prevents the assessed value of California real property from increasing by more than 2% per year, unless there is a change of ownership or completion of new construction.  On November 3, 2020, California voters will decide whether most commercial and industrial property should be removed from the protections of Proposition 13, with the result that such property would be subject to tax based on its fair market value. Continue Reading

Final Revisions to NEPA Regulations: Six Highlights from Major Rule Overhaul

The White House Council on Environmental Quality (CEQ) recently published a final rule (Rule) revising the implementing regulations for the National Environmental Quality Act (42 U.S.C. § 4321 et seq ) (NEPA).  Touted as the first comprehensive revision of CEQ’s NEPA regulations since their creation in 1978, the stated goal of the Rule includes facilitating more efficient, effective, and timely NEPA review by federal agencies. Continue Reading

California Court of Appeal Decision May Result in Big Tax Savings for Some Commercial Property Owners

In a decision that could save some commercial property owners hundreds of thousands of dollars in taxes, the Court of Appeal for the First Appellate District of California held in 731 Market Street Owner, LLC v. City and County of San Francisco (Cal. Ct. App., June 18, 2020, No. A154369) that the City and County of San Francisco cannot impose a documentary transfer tax on the value of an assigned landlord-interest in a lease when the lease has a remaining term of at least 35 years.  The 35-year cutoff considers both the remaining initial term of the lease and unused extension options. Continue Reading

ULURP Clock Restarted

Today, New York City Mayor Bill De Blasio announced the long-awaited date for the City’s land use process (the Uniform Land Use Review Procedure, or ULURP) to be officially restarted with the City Planning Commission’s first public review session scheduled for August 3, 2020 and the first public hearing scheduled for August 5, 2020.  All meetings , including Community Board, Borough President and the City Council, will take place virtually until further notice.  Information on public hearing schedules for the City Planning Commission, and how to participate in public hearings can be found at NYC Engage. Continue Reading

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